If Immigration Law Is Federal, Why Are States Passing Immigration-Related Laws?

Think what a mess it would be if every state in the country could decide who may (or may not) receive a tourist visa, a green card, or some other immigration benefit that no one has yet dreamed up.

That’s just one of the many reasons why only the U.S. federal government may set immigration law and policy. Immigration is one of the few areas of U.S. law that is nearly uniform across the 50 states. (Exceptions exist, but let’s not get into those now.) In fact, a lawyer who becomes a member of just one state bar can move to any other U.S. state and practice immigration law there.

So what accounts for the recent news from the Washington Post that “States passed 171 immigration laws last year“? Only Montana, Texas, Nevada, and North Dakota held back from this flurry of legislating, and apparently only because they weren’t in session at the right times.

Well, none of these states are actually handing out visas or changing existing law. (In fact, I might quibble that the headline should have replaced the words “immigration laws” with “immigration-related laws,” or “laws affecting immigrants.”)

California, for example, authorized drivers’ licenses for undocumented immigrants — reportedly the tenth state to do so. (California also passed 53 other laws, or in many cases, “resolutions” regarding what Congress should do about immigration matters.)

Attempting to augment federal enforcement of the immigration laws was also a biggie in a number of states, as it always is. And some of these laws will eventually wind up in court and possibly be struck down, as was a 2005 Arizona law that made smuggling immigrants into a state crime. The problem there was that the court Arizona’s action was viewed as actually conflicting with federal law.

So what’s a conflict, and what’s a complementary law? No easy answers exist. For an in-depth analysis, see “Who is Responsible for U.S. immigration policy?” by Jennifer Chacon. As Chacon concludes, “although there is a uni­form federal immigration law, and although the Supreme Court has declared unequivocally for over a cen­tury that the federal government has the exclusive power to make and enforce that law, the policies and practices of state and local governments throughout the country continue to shape the lived experience of the immigrants within their jurisdiction.”

And lawsuits over state laws, policies, and practices will no doubt be the subject of arguments and litigation into the foreseeable future.